Argument of Speaker
Mr. Speaker: We have a per-curiam opinion to announce in No. 04-1581, Wisconsin Right to Life, Incorporated, versus the Federal Election Commission.
The Bipartisan Campaign Reform Act of 2002 prohibits corporations from using general treasury funds to pay for electioneering communications.
These are defined to include broadcast advertisements within a certain period of an election that mention a candidate.
In 2004, Wisconsin Right to Life wanted to run television ads asking Wisconsinites to tell their Senators to oppose the filibuster of judicial nominees.
The advertisements were covered by the definition of “electioneering communication”, because they included the name of a Senator up for re-election and were going to run within 60 days of the 2004 election.
Wisconsin Right to Life brought suit in Federal District Court, arguing that applying the Act its advertisements violated the First Amendment.
The District Court rejected this claim, because it considered the argument foreclosed by one of our prior decisions.
The lower court misinterpreted that prior decision.
In that case, we considered to facial challenge to the Bipartisan Campaign Reform Act.
But in deciding a First Amendment facial challenge, we strike down a statute only if it is unconstitutional in a substantial portion of its application; otherwise, we uphold the statute against the facial challenge and leave it to future as-applied challenges to address whether the statute is unconstitutional in particular applications.
The Government argued that the lower court, after determining that the as-applied challenges were foreclosed, also held that Wisconsin Right to Life’s as-applied challenge must fail.
We do not think it clear that the District Court intended its opinion to rest on this alternative ground.
We, therefore, vacate the judgment and remand the case to the District Court to consider the merits of Wisconsin Right to Life’s as-applied challenge in the first instance.
This per-curiam opinion is unanimous.
